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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-10-MA-0198
Durrant Clarke ) NAL/Acct. No.: 201132600007
Miami, Florida ) FRN: 0020872792
)
)
FORFEITURE ORDER
Adopted: January 31, 2012 Released: January 31, 2012
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of one thousand dollars ($1,000) to Durrant Clarke (Mr.
Clarke) for willful and repeated violation of Section 301 of the
Commission's Act of 1934, as amended (Act). The noted violations
involved Mr. Clarke's operation of an unlicensed radio transmitter on
the frequency 95.9 MHz from his business in Miami, Florida.
II. BACKGROUND
2. On May 19, 2011, the Enforcement Bureau's Miami Office (Miami Office)
issued a Notice of Apparent Liability for Forfeiture (NAL) to Mr.
Clarke for operating an unlicensed radio transmitter on November 6 and
20, 2010. In view of the record evidence, the NAL proposed a
forfeiture of $10,000 against Mr. Clarke for violation of Section 301
of the Act. Mr. Clarke submitted a response to the NAL admitting that
he allowed someone to place radio equipment in his space but denying
participation in the "breaking of any law." Mr. Clarke also requested
a reduction of the proposed forfeiture based on his inability to pay
the forfeiture.
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Commission's rules
(Rules), and the Forfeiture Policy Statement. In examining Mr.
Clarke's response, Section 503(b)(2)(E) of the Act requires that the
Commission take into account the nature, circumstances, extent, and
gravity of the violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require. As discussed below, we have
considered Mr. Clarke's response in light of these statutory factors
and we reduce the forfeiture to $1,000 based solely on his inability
to pay.
4. As set forth in the NAL, agents from the Miami Office determined that
an unlicensed radio station on the frequency 95.9 MHz operated from
Mr. Clarke's business address in Miami, Florida on November 6 and 20,
2010. In his response to the NAL, Mr. Clarke states that he allowed
"Brother Gary" to place "some sort of portable `radio' system" in his
business space in order "to spread the word of God" without any
monetary compensation. Mr. Clarke, however, admits that he: (1) knew
the equipment was "radio" equipment; (2) allowed the equipment to be
placed in his business space; and (3) turned the equipment on and off
as directed by "Brother Gary." Mr. Clarke also does not deny that he
had control over the physical space in which the transmitter was
located and acknowledged that he provided the electricity and internet
access to the station.
5. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States, except under and in accordance with
the Act and with a license granted under the provisions of the Act.
For the purposes of Section 301 of the Act, the word "operate" has
been interpreted to mean both the technical operation of the station,
as well as "the general conduct or management of a station as a whole,
as distinct from the specific technical work involved in the actual
transmission of signals." In other words, the use of the word
"operate" in Section 301 of the Act captures not just the "actual,
mechanical manipulation of radio apparatus" but also operation of a
radio station generally. To determine whether an individual is
involved in the general conduct or management of the station, we can
consider whether such individual exercises control over the station,
which the Commission has defined to include ". . . any means of actual
working control over the operation of the [station] in whatever manner
exercised."
6. As stated in the NAL, the fact that someone else also may have been
involved in the station's operation does not make Mr. Clarke any less
of a participant in the station's operation. We have previously held
that, because Section 301 of the Act provides that "no person shall
use or operate" radio transmission equipment, liability for unlicensed
operation may be assigned to any individual taking part in the
operation of the unlicensed station, regardless of who else may be
responsible for the operation. Moreover, the fact that he provided his
services to "Brother Gary" for free has no bearing on whether Mr.
Clarke had control over the station. Together, the undisputed
facts-that Mr. Clarke knowingly allowed someone to place radio
equipment in his business space, paid for the electricity for the
radio station, and turned the radio station on and off-show Mr. Clarke
had control of the station, and thus was an operator of the station.
The fact that Mr. Clarke did not intend to violate the law has no
impact on whether his violations were willful, as he consciously
committed the illegal acts. Therefore, we find that Mr. Clarke
willfully and repeatedly violated Section 301 of the Act by operating
an unlicensed radio station.
7. With regard to an individual's or entity's inability to pay claim, the
Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture. Based on our review
of the financial documents provided by Mr. Clarke, we find that a
reduction from $10,000 to $1,000 is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Durrant Clarke
IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand
dollars ($1,000) for violations of Section 301 of the Act.
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
enforcement pursuant to Section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/Account Number and FRN referenced above. Payment by
check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Requests for full payment under an installment
plan should be sent to: Chief Financial Officer - Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk with
any questions regarding payment procedures at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Mr. Clarke shall also send electronic
notification to SCR-Response@fcc.gov on the date said payment is
made.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Durrant
Clarke at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
Durrant Clarke, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
6982 (Enf. Bur. 2011). A comprehensive recitation of the facts and history
of this case can be found in the NAL and is incorporated herein by
reference.
47 U.S.C. S: 301.
See Letter from Durrant Clarke to Steven DeSena, Resident Agent, Miami
Office, Enforcement Bureau, dated May 28, 2011 (NAL Response).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
NAL Response at 1.
Id.
47 U.S.C. S: 301.
See Campbell v. United States, 167 F.2d 451, 453 (5th Cir. 1948)
(comparing the use of the words "operate" and "operation" in Sections 301,
307, and 318 of the Act and concluding that the word "operate" as used in
Section 301 of the Act means both the technical operation of the station
as well as the general conduct or management of the station).
Id.
Id.
See Revision of Rules and Policies for the Direct Broadcast Satellite
Service, 11 FCC Rcd 9712, 9747 (1995), recon. denied, DIRECTV, Inc. v.
FCC, 110 F.3d 816 (D.C. Cir. 1997).
NAL at 6984.
47 U.S.C. S: 301.
See, e.g., Jean L. Senatus, Forfeiture Order, 20 FCC Rcd 14418 at para. 11
(Enf. Bur. 2005); Robert Brown, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 13740 (Enf. Bur. 2010); Loyd Morris, Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 13736 (Enf. Bur. 2010).
See Jhony Desinor, Forfeiture Order, 19 FCC Rcd 14137 (Enf. Bur. 2004),
recon. dismissed 21 FCC Rcd 7858 (Enf. Bu. 2006) (operator who did not
receive any revenues from the station can still be held liable for station
operations).
See 47 U.S.C. S: 312(f)(1). Section 312(f)(1) of the Act, which also
applies to violations for which forfeitures are assessed under Section
503(b) of the Act, defines willful as the "conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law.
Id.
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), provides that "[t]he
term `repeated', when used with reference to the commission or omission of
any act, means the commission or omission of such act more than once or,
if such commission or omission is continuous, for more than one day."
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
This forfeiture amount falls within the percentage range that our
precedents have found acceptable. See supra note 23. If Mr. Clarke
believes that paying this amount still presents financial difficulties, we
note that he could always pursue an installment payment plan to lessen the
immediate impact of the forfeiture.
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-108
4
Federal Communications Commission DA 12-108